PEOPLE v. HOWARD

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Stanley HOWARD, Defendant-Appellant.

Decided: December 31, 2003

PRESENT:  PIGOTT, JR., P.J., PINE, WISNER, HURLBUTT, AND GORSKI, JJ. Charles A. Marangola, Moravia, for Defendant-Appellant. James B. Vargason, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Plaintiff-Respondent.

 On appeal from a judgment convicting him following a jury trial of, inter alia, three counts of robbery in the first degree (Penal Law § 160.15[2]-[4] ) and one count of criminal possession of a weapon in the second degree (§ 265.03[2] ), defendant contends that County Court erred in admitting in evidence a gun and knife used in the commission of the crimes because there were deficiencies in the chain of custody with respect to both.   We disagree.   Where, as here, “ ‘the circumstances provide reasonable assurances of the identity and unchanged condition’ of the evidence,” any deficiencies in the chain of custody go to the weight of the evidence and not its admissibility (People v. Julian, 41 N.Y.2d 340, 343, 392 N.Y.S.2d 610, 360 N.E.2d 1310;  see People v. Thompson, 300 A.D.2d 1032, 1033, 751 N.Y.S.2d 921, lv. denied 99 N.Y.2d 620, 757 N.Y.S.2d 831, 787 N.E.2d 1177).

 We reject the further contention of defendant that the court erred in denying his motion to suppress evidence discovered as a result of a patdown search.   Defendant consented to that search (see People v. Brewer, 200 A.D.2d 579, 580, 606 N.Y.S.2d 292, lv. denied 83 N.Y.2d 869, 613 N.Y.S.2d 130, 635 N.E.2d 299, cert. denied 513 U.S. 850, 115 S.Ct. 148, 130 L.Ed.2d 88) and, when officers were unable to determine whether any of the numerous hard objects in defendant's pockets were weapons, they were justified in reaching into defendant's pockets in order to determine whether any of the objects were weapons (see People v. Taylor, 123 A.D.2d 651, 651-652, 506 N.Y.S.2d 916, lv. denied 69 N.Y.2d 718, 512 N.Y.S.2d 1045, 504 N.E.2d 413;  see also People v. Harry, 187 A.D.2d 669, 590 N.Y.S.2d 256, lv. denied 81 N.Y.2d 789, 594 N.Y.S.2d 736, 610 N.E.2d 409).

We further conclude that the evidence is legally sufficient to support the conviction and the verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Finally, the sentence is neither unduly harsh nor severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: